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Brown-Nagin, Tomiko

On the fiftieth anniversary of the Civil Rights Act of 1964, this Article argues for a renewed focus on disadvantage and social mobility in passage of the Civil Rights Act and originally advocated affirmative action, the goals of rooting out discrimination and ensuring social mobility for all Americans motivated him. Over time, these goals receded in law and policy. Courts justified affirmative action on grounds of diversity. More recently, commentators urged consideration of "class-based" affirmative action or advocated policies that favor "low-income" students. Both initiatives can help open up access to selective institutions of higher education. However, neither is a dependable proxy for disadvantage in education. Race-based affirmative action justified on grounds of diversity is a vital tool for ameliorating racial inequality, but it does not necessarily address class-based disadvantage. Class- or income-based policies do not necessarily benefit the neediest students.

The demographic makeup of selective institutions of higher education today suggests that neither effort is particularly effective in ensuring social mobility. Campuses are more racially heterogeneous, but largely economically homogeneous. If the social mobility objectives of the Civil Rights Act are to be more fully realized, universities must supplement current admissions and aid policies.

Today's costly, ultra-competitive, and strategically managed admissions environment makes it even more vital to create pathways for talented students from truly disadvantaged backgrounds to selective institutions. To avoid the crowding out of the neediest students, disadvantage must be identified more precisely and attacked at its roots instead of indirectly. Favorable treatment of first-generation, Pell Grant-eligible students in three areas - admissions, financial aid, and institutional outreach - can facilitate greater access for truly educationally disadvantaged students. Through initiatives focused on these students, colleges can simultaneously tackle social problems related to income, socio-culture, place, and race, advance equal educational opportunity and pursue the national interest in social mobility.

This essay builds on the constitutional history of the civil rights movement from below to complement and complicate the canon identified in We the People: The Civil Rights Revolution. Like Professor Ackerman’s work, this essay embraces the concept of popular sovereignty: it is a powerful resource for social movements seeking constitutional change. However, this essay expands the “who” and the “what” of the civil rights era’s constitutional vision beyond the public figures and antidiscrimination statutes to which We the People attaches great significance. Ackerman’s civil rights canon emanates from officialdom—Lyndon Johnson, Hubert Humphrey, and Everett Dirksen—and a single representative of the civil rights movement, Rev. Dr. Martin Luther King, Jr. Antidiscrimination statutes—the Civil Rights Act (CRA), Voting Rights Act (VRA), and Fair Housing Act (FHA)—comprise the canon. This essay argues that A. Philip Randolph, Bayard Rustin, Ella Baker, and the new abolitionists of the Student Nonviolent Coordinating Committee (SNCC)—representatives of the grassroots and proponents of an economic vision of equality—also were architects of a civil-rights-era canon.

These avant-garde figures, often critics of the Democratic Party, pushed Dr. King and federal officials to pursue economic citizenship as a component of a new constitutional vision of equality. In the Equal Opportunity Act (EOA), the heart of the War on Poverty, this element of the movement partly realized some of its economic goals. These activists contributed to change during the civil rights era in the absence of formal power in legislatures and courts, and pressed states and local people to implement (or ratify) locally relevant elements of the national civil rights agenda. Because this activism was tethered to local communities and local concerns, these activists personify popular sovereignty in its truest meaning.

The exclusion of such mobilized and organized citizens as agents of political influence—as elemental to the “we” in “We the People”— reveals two conceptual limitations in We the People’s canonization project. First, it denies voice, agenda-setting power, and historical significance to the same classes of persons denied full citizenship and left outside of the corridors of power when the drafting and ratification of the Constitution originally took place. Second, We the People’s imperfect version of history results in an inaccurate description of civil rights constitutionalism. It conceives “higher lawmaking” as the byproduct of power brokers who leverage institutional power and achieve consensus about the meaning of equality through assent by electoral majorities. A more descriptively accurate and normatively desirable account of civil rights constitutionalism would concede historical and ongoing contest over the meaning of equality.

The Supreme Court’s decision sustaining the Affordable Care Act has inspired commentary applauding the Court for preserving the social safety net instituted and expanded during the New Deal and the Great Society. That narrative, as far as it goes, is accurate; but its double-edged meaning has not been fully understood until now, this Article shows. In exchange for the establishment and expansion of federal entitlement programs, Congress ceded to otherwise resistant states substantial control over the administration of federal programs, including Medicaid. Historically, officials in many states deployed administration discretion to police the boundaries of the "deserving" versus "undeserving" poor, to discriminate against minorities, and to stigmatize social welfare spending. The Chief Justice’s deft opinion in NFIB reinforced deference to the states — and the attendant costs described in this Article’s examination of the fraught socio-legal history of federal social welfare programs. In an unprecedented reading of the Spending Clause that privileged states’ decisional autonomy, the Court undermined Congress’s power to institute a truly national healthcare system through Medicaid. As a consequence of the Court’s analysis, states can opt out of the Medicaid expansion without fear of losing existing funding. Twenty-three states — including those with some of the highest poverty rates in the nation and thus the greatest need for Medicaid — did, in fact, opt out. The remarkable outcome of NFIB on the Medicaid expansion in states where some of the neediest Americans reside should temper any assessment that the Court preserved the New Deal-Great Society social contract. If NFIB affirmed the New Deal-Great Society contract, this Article shows, it shored up both the laudable and lamentable aspects of that legacy. The outcome perpetuated two Americas in healthcare.